*1 crime, enhancing beyond the stat- and sentence seriousness of the so I find that (Tr. 704.) at utory aggravating maximum. Id. S.Ct. factor.” State, Smylie 2531. See also The trial court did not err in sentencing (Ind.2005) (Indiana’s sen- Davidson. system allowing judicial fact-find- tencing Conclusion from ing and deviation fixed term violates affirm Davidson’s conviction and Amendment).4 up Sixth Counsel has lifted sentence. logical one of the conundrums created if a

Blakely: judge trial cannot find an DICKSON, SULLIVAN, BOEHM, and aggravator support pre- more than a RUCKER, JJ., concur. sentence, sumptive how can it use such a mitigators, leading factor to offset to a

presumptive sentence? As far as we can

tell, Blakely court’s answer would be:

because the Amendment is not Sixth vio- when, through judicial

lated whatever ac-

tion, presump- the defendant receives the Merry FUNSTON, Howard and

tive sentence. (Plaintiffs Appellants below), legitimacy As for the of the aggra- “[ijmposition vator aof reduced sentence depreciate ... would the seriousness of MUNSTER, SCHOOL TOWN OF crime,” it an aggravating is circum (Defendant below). Appellees stance the trial court consider in sen tencing. 35-38-1- Ind.Code Ann. Sales, f/k/a, Continental Leisure Inc. 7.1(b)(4)(West 2004).5 This circumstance Seavey Corporation, Inc., is properly considered when the trial (Defen- Basketball Club AAU/Munster court considering imposing is a sentence below).1 dants below the presumptive term. Jones v. No. 45S03-0506-CV-262. State, apparent from the record that the trial Supreme Court of Indiana. court in fact did consider a reduced sen 28, 2006. June tenced, statement, by virtue of its “that for the Court to consider reduced sentence depreciate

would the value or depreciate Assembly 4. prior Indiana’s General amended the since he was sentenced we analyze felony sentencing system. his sentence under the replacing former statutes in presumptive "fixed with an "advi- term” Assembly 5. The Indiana General also amend- sory sentence.” 2005 Ind. Acts 1600. This sentencing making ed this statute in all sentence, effectively changed the maximum aggravating mitigating dis- circumstances Blakely purposes, presumptive cretionary, previous system in contrast to the Thus, upper statutory fixed term to the limit. required which the trial court to at least con- example, "Blakely” maximum sen- aggravating explicitly sider some listed cir- changed fifty-fiveyears tence for murder from cumstances. 2006 Ind. Acts 3209. years. sixty-five Sales, 1. Defendants Continental Inc. Leisure certainly passes Davidson’s sentence consti- Basketball Club are not AAU/Munster regime, tutional muster under the new seeking appeal have relief on not filed *2 appellant appellee. ty party brief as Pursuant to of record in the trial court on 17(A),however, Appellate par- appeal. Indiana Rule *3 Allen,

Kenneth J. Michael T. Terwilli- ger, Lazarus, William James Kenneth J. Associates, P.C., IN, Allen & Valparaiso, Attorneys for Appellant. Sears, Maryann

Michael D. Kusiak McCauley, Greceo, Singleton, Crist, Jill M. Sears, Austgen LLP, Munster, IN, & At- torneys Appellee.

On Petition To Transfer from the Indiana of Appeals,

Court No. 45A03-0402- CV-63 DICKSON, Justice. Contributory negligence is generally question of fact requiring by jury trial court, summary judgment may be proper where the facts and resulting inferences establish that the de- fendant is entitled to as a matter of law. This is such a case. affirm trial summary judgment. court’s injured

Howard Funston was when he fell from set of bleachers while participate his son in an Amateur Athletic (AAU) Union basketball the Mun- High ster gymnasium. School Mr. Fun- wife, ston plaintiffs-appellants, and his against thereafter commenced this action (“the school”), against the plaintiffs’ The claims Town of Munster the School school, entity, unlike governmental are Sales, Inc. Seav- Leisure Continental Wa Indiana actions for where most Club, Basketball ey Corp., AAU/Munster contributory fault does bar since been and another defendant has fifty recovery percent unless it exceeds dismissed. contributing fault proximately the total AAU, agreement Under damages operates and otherwise identi- High provided School six Munster plaintiffs damages propor to reduce aluminum bleacher portable cal five-row 34-51-2-5, -6. But tion to fault. Ind. Each of bleachers had no back sets. set Comparative Fault Act ex the Indiana *4 seating, of and support top for the row governmen pressly application excludes pushed against of the sets were none entities, 34-51-2-2, and tal Ind.Code games, Mr. Funston sat on wall. For two defense of contribu thus the common law separate of of the six the lower seats two applicable gov for tory negligence remains bleachers, leaning identical sets of defendants, ernmental such as the school of the higher back on the rows bleachers Therefore, slight in case. even a de game of the support. During the third on the of Mr. gree negligence part of of a third set of day, top he sat on the row Funston, proximately contributing to his get In an effort to identical bleachers. damages, operate claimed will as a total comfortable, legs Mr. Funston crossed his damages bar to the Funstons’ action for back, falling school,2 and leaned backwards off the against though, the even sustaining injuries. bleachers and non-governmental other defen against the dants, any only fault of Mr. Funston would summary The school filed a motion for operate damages might to reduce the he judgment, asserting that Funston was Mr. obtain. contributorily a matter of negligent as In of appeal their sum- agreed granted The trial court and the mary judgment, argue the Funstons that Appeals school’s motion. The Court of (1) that the school failed establish: Town Mun reversed. Funston Sch. of contributorily as a ster, (Ind.Ct.App.2004). 822 N.E.2d 985 (2) law, any matter of and that contributo- granted transfer. ry negligence was a cause of his injuries. Summary judgment proper is “if evidentiary designated matter shows plaintiff contributorily negli A is any as to there is no issue gent when the conduct “falls be party fact is moving

material and low the standard to which he should con entitled to a as matter of law.” safety. form own protection for his 56(C); Trial Rule see also Rhodes v. ordinary Lack of reasonable care that an 382, (Ind.2004); Wright, 805 N.E.2d 385 in like or person would exercise similar Peru, City Butler v. 733 N.E.2d upon circumstances is the factor which the of (Ind.2000). All facts and reasonable infer presence de absence Gleim, ences are construed in favor of the non- pends.” Jones Comm’rs, (Ind.1984); moving party. Catt v. Bd. see also Hundt v. La (Ind.2002). Co., Crosse Grain proximately to the claimed 2. Under the common law defense of contribu- contributes Bain, Mattmiller, tory negligence, plaintiff may injury. not recover if Adm’x v. 549, 556, (1938). guilty any negligence, slight, no matter how Expressed way, another spectators row, sitting on the top but Mr. “[cjontributory negligence is the failure of Funston leaned back anyway. He ex- person safety to exercise for his own plained deposition: degree of care and caution which ordi- Logically, I would think there would be reasonable, nary, prudent person in a a back there. I had sat on the other similar situation would exercise.” Brown bleachers and I didn’t sit at top v. N. Ind. Publ. Serv. I had leaned back in several of those 798 (Ind.Ct.App.1986). bleachers on the next step.... thought I there, there was something back ... I’m

Contributory negligence general is not sure what I thought was back there ly question of fact and is not an appropri time. summary judgment ate matter “if there conflicting are factual inferences.” Appellant’s App’x. 256.

Butler, “However, 733 N.E.2d at 917. Brown, Citing 496 N.E.2d at where the facts are a 798, the Funstons contend in part single inference can be drawn “judgment as a matter of law on the issue therefrom, question of contributory negligence only appro *5 Jones, becomes one of law.” priate plaintiffs when a ‘knowledge and (Ind.1984). 468 N.E.2d at 207 The appli appreciation of the dangers, inherent his cation of principles long these has been enterprise and of creation, the defendant’s expressed as follows: surpassed equaled or that of the defen ” prevailing The Indiana rule is that dant.’ Br. of Appellants at 8. argu This contributory negligence is generally a ment misapplies Brown. A plaintiffs question of fact jury for the deter- equal superior or knowledge quali is not a mine where the facts are such as to be fication limiting the principle common law subject to more than one in- reasonable of negligence. is not a However, ference. where the facts are general prerequisite to contributory negli undisputed single a inference gence that a knowledge ap therefrom, can be drawn the preciation dangers of the inherent sur question of contributory negligence be- passed equaled or that of the defendant. comes one of law. Rather, the existence of such a circum Dick, Stallings 118, v. Ind.App. 139 124- stance will support finding of contributo 25, (1965) 82, 210 N.E.2d 86 (citing Pitts- See, ry negligence as a matter of e.g., etc., burgh, R.R. Spencer, Co. v. 98 Ind. Brown, (a 496 plaintiff N.E.2d at 798 186, (1884); 1884 Jenney WL 5741 Elec. superior knowledge and appreciation of Mfg. 397, Co. v. Flannery, 53 Ind.App. 98 dangers contributorily negligent “is (1913)). N.E. 424 law”); a matter of Hedgecock v. Orlosky, 390, 395, 44 N.E.2d 95-96 undisputed

The facts are that Mr. (1942) (no liability may Funston fell when result when a he leaned backwards plaintiff superior equal knowledge while has or sitting top on the of a row set of Farms, danger); of the bleachers. He had Meadowlark Inc. gym been at the Warken, hours, 437, 448, Ind.App. about four 176 two basketball (1978) (“[A] games morning sitting plaintiff while on lower rows contributorily negligent on other sets of identical bleachers. as matter of law game, For the third top knowledge appreciation he moved to the of the row of one of the clearly dangers surpassed bleachers. It was ... equaled or that of defendant.”); visible that railing there was no back Stallings, Ind.App. (parties’ consequence at 87-88 iden- of the act or omission. Wright, Rhodes v. dangers compels knowledge tical of the (Ind.2004); Kroger Vernon contributory negligence as matter finding (Ind.1999); Havert v. law). of Caldwell, Thus, undisputed if it were argue The Funstons there exists knowledge danger of the was Funston’s of fact genuine regarding issue whether school, that of the equal superior or proximate the sole cause of Mr. Funston’s finding compel circumstance could injuries was the school’s failure to follow contributory negligence as a matter of law. protect against code and falls from the hand, the other even if we assume for On top They essentially of its bleachers. as- purposes argument plaintiffs’ asser- interpreted sert the facts tion that there is a issue of fact show that the school’s not Mr. regarding whether Mr. Funston’s knowl- Funston’s, only proximate was the cause. danger edge appreciation was disagree. school’s, equal superior to that of the multiple proximate There can be this does not a determination that preclude a resulting causes of event. The defense contributorily negligent Mr. Funston was proximate requires only cause that a not, however, aas matter of law. We do plaintiffs negligence proximate be “a” equal-or-superior- on the resolve this case cause, is, one of the causes. knowledge issue. It is an fact that Mr. Funston plaintiffs primarily argue The that a rea- leaned ascertaining backwards before spectator sonable could be distracted on, something whether there was to lean *6 inadvertently just and lean back easily fact visible and one that he had They urge as Mr. Funston did. that the ample opportunity to observe. We find context of the makes Mr. event Funston’s falling suffering inju that backwards and certainly conduct reasonable. is under- reasonably ries should have been foreseen that standable Mr. Funston would be dis- a natural probable consequence as engaged tracted as he his attention on his omissions, such acts and and thus conclude game. being But son’s basketball under- negligence proximately that Mr. Funston’s equate being standable does not com- injuries to contributed as a matter of pletely negligence. of all free We find Upon these facts there is no only that undisputed facts a sin- issue. reasonably gle inference can be drawn: Finding evidence negligent Mr. Funston was to some de- a matter establishes as of law that Mr. gree, enough and this is establish negligent negli- and that such contributory negli- common law defense of gence proximate was a cause of the gence as a matter of law. injuries, claimed we conclude that the trial apply court was correct to the defense of negli Even Mr. Funston was contributory negligence and to gent, plaintiffs alternatively argue summary judgment. school’s motion for the school failed to establish as a matter of Judgment affirmed. any negligence proxi law that such was a resulting injuries. mate cause of the An SHEPARD, C.J., and SULLIVAN and act or omission is said BOEHM, JJ., concur. injury resulting injury cause of an if the foreseen, J., RUCKER, was should have separate dissents with foreseen, probable opinion. been the natural and Justice, RUCKER, dissenting. factually vealed no similar from cases Court, historically we have limited com- I respectfully agree I dissent. with the mon contributory negligence law in- “[ujnder majority that the common law plaintiff very stances where a clearly ne- plain- defense of glected to exercise “reasonable care that guilty any negli- tiff not recover if ordinary person would exercise in like gence, slight, proxi- no matter how Jones, or similar circumstances.” injury.” mately contributes to the claimed See, N.E.2d at 207. e.g., (plaintiff, id. who Bain, n. 2 Op. (citing at 598 Admx. deaf in wearing was one ear and dark Mattmiller, 213 Ind. clothing glasses, wet crossed a road (1938)). “[cjontribu- agree I also on a rainy, foggy night mid-block without tory question negligence generally traffic); oncoming Hundt v. appropriate fact and is not an matter for Co., Inc., La Crosse Grain 446 N.E.2d 327 summary judgment conflicting ‘if there are (Ind.1983) (plaintiff stepped through a Op. (citing factual inferences.’” at 599 doorway leading to steps downward with- Peru, City Butler v. forward, looking out aware the base- (Ind.2000)). Indeed where there are opened ment door inward while the bath- factual conflicting no inferences does the outward); room opened door Devine v. contributory negligence issue of become Supply Grace Const. & 243 Ind. Gleim, question of law. Jones v. (1962) (plaintiff 181 N.E.2d 862 swerved around three or more blockades and drove Finding that under the facts of this case per per 50-55 miles hour in a 15 mile hour one factual there is but inference to be zone); road construction New York Cent. namely, that Mr. Funston “was reached — Glad, R. Co. v. degree” majority to some —the (1962) (truck driver drove onto train summary judgment appropriate. deems in tracks contravention of the law Summary I Op. disagree. judg- 600. stopping point looking at a mandated rarely appropriate ment is trains). oncoming This case is differ- Wright, actions. Rhodes ent. We know that Mr. Funston was *7 382, 387 “neg- This is because a basketball while sitting ligence particularly cases are fact sensitive atop uppermost row of bleachers. We governed by and are a standard of the legs further know that he crossed his objective person ap- reasonable best —one seat, adjusted whereupon in his he fell plied by jury hearing after all of the backward off the bleachers. What is evidence.” Id. at 387. To declare as an clear from these facts is whether a reason- indisputable factual inference that “Mr. person greater able would have exercised degree” to some by care than that shown Mr. Funston. submitting without the issue of Because there is more than one factual jury deprives Funston drawn from inference the facts be- opportunity to demonstrate that he was us, inappropriate fore this case is for sum- not, fact, inju- of his cause mary disposition. I would therefore re- (“[Pjroximate ries. id. at See cause is verse the trial court. primarily question of fact to be deter- (citation omitted). jury”) mined say

I cannot as matter law

facts as we know them lead but one Although my

inference. re- research has